When presidents go to war
When President Trump bombed Syria recently, for the second time in a little over a year, he did so, again, without authorization from Congress and with no real debate by lawmakers. That has been the pattern for presidents since the forever war against terrorists began after the Sept. 11 attacks.
Today, American troops are fighting extremist groups in at least 14 countries, with most deployments having occurred at the president’s sole discretion because Congress has given presidents a blank check to wage war.
That’s not the way the system was supposed to work. Under the Constitution, decisions about sending American men and women into battle are divided between Congress and the president, with Congress deciding whether to declare war and the president commanding troops. In fact, most legal scholars believe that America’s founders wanted Congress to decide when to fight, except when the country is under attack. Since World War II, however, presidents from both parties have expanded their authority, carrying out many military operations without congressional approval.
It’s time for Congress to step up to its responsibilities. Senator Tim Kaine, a Virginia Democrat, has long been pushing to do just that. Now Bob Corker, the Tennessee Republican who leads the Senate Foreign Relations Committee, has joined Mr. Kaine in proposing legislation to ensure that Congress takes more responsibility for deciding when to use force against terrorist groups.
While we appreciate this bipartisan effort, the measure may actually give presidents more power to decide when, where and against whom Americans can fight, by approving existing military operations that began without congressional approval, and by allowing presidents to expand that scope of action with only a minimal role by Congress. That’s a concern no matter who occupies the White House but especially when the president is as impulsive as Mr. Trump.
The Senate Foreign Relations Committee needs to hold hearings to examine publicly how the measure can be modified to ensure there is a more effective congressional check on the president’s ability to begin military operations so that the war on terrorists isn’t used as cover to fight any enemy, anywhere.
During the Vietnam War, Congress tried to reclaim some of its clout by passing the 1973 War Powers Act, which mandated that if a president sent troops into “hostilities,” they could stay only 60 to 90 days unless Congress approved the deployment or extended the time period. In recent years, executive branch lawyers have concluded that presidents may act unilaterally if they decide that a strike would be in the national interest and that it would fall short of an all-out war involving ground troops. Congress, reluctant to be held accountable for putting troops in danger, and wary of challenging presidents, largely acquiesced.
That is until the Sept. 11, 2001, attacks, when Congress passed an Authorization for the Use of Military Force to cover American-led operations against Al Qaeda and the Taliban in Afghanistan. In 2002 it passed a second authorization, to cover the war in Iraq. Although 17 years have passed since the attacks on the United States, President Barack Obama and Mr. Trump, defying credibility, kept using the same authorizations to justify operations against the Islamic State and other groups that didn’t even exist in 2001 and to legitimize operations in many other countries, including Yemen, the Philippines, Kenya, Eritrea and Niger.
Under the Kaine-Corker proposal, these 2001 and 2002 authorizations would be replaced with one that approves the use of force not just against Al Qaeda and the Taliban but also against six groups not in the 2001 authorization: the Islamic State, Al Qaeda in the Arabian Peninsula, the East African group Al Shabab, Al Qaeda in Syria, Al Qaeda in the Islamic Maghreb and the Haqqani Network, which operates in Afghanistan and Pakistan. It would also increase the countries where force is authorized to include Syria, Yemen, Somalia and Libya.
Significantly, a president in the future could add to these lists more terrorist groups and “associated forces” that are successors to existing terrorist groups as well as other countries, and could carry out operations involving them just by informing Congress within 48 hours of acting. This new reporting requirement is a step in the right direction. So is another one in the legislation, mandating that every four years Congress review the authorization and decide whether it should be continued or modified.
But over all the bill’s provisions are too broad and could bless military operations in perpetuity, not least because Congress would be unlikely to muster the two-thirds majority that would be needed to take away or alter an authorization once it is enshrined in law or is later added on by a president.
There is also the question of how this latest authorization could affect the War Powers Act, which, even if often ignored, puts the burden on the president to justify force, not Congress, by giving him 60 days either to secure congressional approval after initiating hostilities against a new enemy or to end the operation. Bruce Ackerman, a Yale law professor, says the proposed authorization would effectively repeal the War Powers Act and its protections for Congress’s war-making role by taking away those presidential requirements.
Although the bill’s supporters say no country could be considered an “associated force” under the proposal, some critics fear that it could be used by the Trump administration to go to war against Iran or North Korea, both of which the United States considers to be state sponsors of terrorism. Given how far Mr. Obama and Mr. Trump stretched the 2001 authorization, such concerns cannot be dismissed.
Congress needs to be more involved in decisions like those about when and where America fights terrorists. But the Kaine-Corker bill would not make Congress take enough responsibility for how those decisions are made and would give presidents too great an ability to keep spreading the war on terrorism.